Bannock National Bank v. Automobile Accessories Co.

• Decision Date: 30 December 1922
• Citation: 212 P. 864,36 Idaho 527
• Parties: THE BANNOCK NATIONAL BANK, a Corporation, Respondent, v. AUTOMOBILE ACCESSORIES COMPANY, a Corporation, W. W. WHITE and D. D. WHITE, Defendants; ANCY SULLIVAN, Appellant; ELEANOR M. SULLIVAN, Intervenor and Appellant
• Court: Idaho Supreme Court

212 P. 864

36 Idaho 527

THE BANNOCK NATIONAL BANK, a Corporation, Respondent, v. AUTOMOBILE ACCESSORIES COMPANY, a Corporation, W. W. WHITE and D. D. WHITE, Defendants; ANCY SULLIVAN, Appellant;

ELEANOR M. SULLIVAN, Intervenor and Appellant

Supreme Court of Idaho

December 30, 1922

NOTICE OF APPEAL-SERVICE-ADVERSE PARTIES.

A joint and several judgment was entered against each of four defendants and an intervenor, three of the defendants having defaulted. The remaining defendant and intervenor appealed. Held, that the three defaulting defendants were adverse parties and entitled to service of notice of appeal, as to the appealing defendant, within the meaning of C. S., sec 7153, but were not adverse parties and therefore not entitled to service of notice of appeal as to the intervenor.

APPEAL from the District Court of the Fifth Judicial District, for Bannock county. Hon. Robert. M. Terrell, Judge.

Motion to dismiss appeal. Sustained as to appellant, Ancy Sullivan. Denied as to intervenor, Eleanor M. Sullivan.

Motion sustained as to Ancy Sullivan and his appeal dismissed, and motion as far as it concerns the appeal of Eleanor M Sullivan denied. Costs of Ancy Sullivan appeal awarded to respondent.

Geo. C Huebener, for Appellants.

The words, "adverse party," in sec. 7153, C. S., mean 'injuriously affect," "adversely affect," and "prejudicially affect," those who were not served with such notice, and this is the trend followed by California as well as other states. (Nelson-Bennett Co. v. Twin Falls etc. Co., 13 Idaho 767, 13 Ann. Cas. 172, 92 P. 980; Holt v. Empey, 32 Idaho 106, 178 P. 703; Kenney v. Parks, 120 Cal. 24, 52 P. 40; Diamond Bank v. Van Meter, 18 Idaho 243, 21 Ann. Cas. 1273, 108 P. 1042.)

When the defendants upon whom notice of appeal was not served had defaulted, they are not thereafter entitled to notice of appeal if judgment has been rendered against them as well as against answering codefendants. (Aulbach v. Dahler, 4 Idaho 522, 43 P. 192; Randall v. Hunter, 69 Cal. 80, 10 P. 130; McKeany v. Black (Cal.), 46 P. 381; Fearon v. Fodera, 169 Cal. 370, 148 P. 200.)

The defaulting defendants have no interest in the subject matter of the intervenor's appeal. (Mohr v. Byrne, 132 Cal. 250, 64 P. 257.)

White & Bentley, for Respondent, file no brief.

BUDGE, J. McCarthy, DUNN and Lee, JJ., concur.

OPINION

BUDGE, J.

The Bannock National Bank sued the Automobile Accessories company, a corporation, W. W. White, Ancy Sullivan and D. D. White. Eleanor M. Sullivan filed a complaint in intervention claiming ownership to certain moneys which had been attached by respondent as belonging to Ancy Sullivan, claiming the same as her sole and separate property. The Automobile Accessories Company, W. W. White and D. D. White defaulted and judgment was entered against them. Ancy Sullivan filed his separate answer. Upon the trial judgment was had against him and Eleanor M. Sullivan. To the complaint in intervention of Eleanor M. Sullivan all of the defendants defaulted except respondent. From the judgment entered against Ancy Sullivan and Eleanor M. Sullivan this appeal is prosecuted.

The motion to dismiss the appeal is based on the following grounds:

"1. That the notice of appeal filed in said cause does not intelligently refer to the judgment in said cause.

"2. That the notice of appeal has not been directed to nor served upon the defendants, Automobile Accessories Co., a corporation, W. W. White and D. D. White.

"3. That the said Automobile Accessories Co., a corporation, W. W. White and D. D. White, are adverse parties herein and the time within which an appeal can be taken from the judgment against them in this cause has expired."

Upon the oral argument on the motion counsel for respondent conceded there was no merit in the first point stated in his motion to dismiss and we will therefore disregard it.

Coming to the second point, C. S., sec. 7153, reads in part as follows: "An appeal is taken by filing with the clerk of the court in which the judgment or order appealed from is entered, a notice stating the appeal from the same, or some specific part thereof, and serving a similar notice on the adverse party, or his attorney. . . . "

An adverse party, within the meaning of C. S., sec. 7153, means any party who would be prejudicially affected by a modification or reversal of the judgment or order appealed from. (Holt v. Empey, 32 Idaho 106, 109, 178 P. 703. See, also, Nelson Bennett Co. v. Twin Falls Land & Water Co., 13 Idaho 767, 13 Ann. Cas. 172, 92 P. 980; Diamond Bank v. Van Meter, 18 Idaho 243, 21 Ann. Cas. 1273, 108 P. 1042; Titiman v. Alamance Mining Co., 9 Idaho 240, 74 P. 529; Aulbach v. Dahler, 4 Idaho 522, 43 P. 192.)

From the judgment in this case it appears: ". . . . that the default of the Automobile Accessories Co., a corporation, W. W. White and D. D. White, having been duly entered for failing to answer or appear within the required time, . . . . it is ordered, adjudged and decreed that the plaintiff have and recover from the defendants Automobile Accessories Co., a corporation, W. W. White, Ancy Sullivan and D. D. White, or any or either of them, the principal sum. . . ."

It appears from the foregoing that default and judgment were entered against the Automobile Accessories Company, W. W White and D. D. White and that the judgment is joint and several. Are the defaulting defendants adverse parties within the meaning of C. S., sec. 7153, and entitled to be served with notice of appeal as provided in said section? Would their rights be injuriously affected should the judgment against the Sullivans, or either of them, be reversed or modified? If the judgment against Ancy Sullivan is reversed or modified in this court it would relieve him in whole or in part from the payment of the judgment. The judgment being both joint and several all or any of the judgment debtors are liable, and should it be paid by the defaulting judgment...